* HOPOs = Home Office Presenting Officers (ie. civil servants).
The Tribunal has no power to make wasted costs orders against individual Home Office Presenting Officers (known as ‘HOPOs’), according to Awuah and Others (Wasted Costs Orders – HOPOs – Tribunal Powers)  UKFTT 00555 (IAC).
What is a wasted costs order (‘WCO’)?
WCOs hit lawyers in the pocket by making them personally responsible for paying the legal costs of the other side.
Such orders are made where there has been improper, unreasonable or negligent behaviour by a legal or other representative (or an employee of such a representative).
They’re a nuclear weapon in the arsenal of lawyers and Judges with a correspondingly strong deterrent effect on professional misconduct.
A credible threat of a WCO can sharpen minds and also drives a painful wedge between the legal representatives being accused of negligence or improper conduct and their clients. For the sadists out there, this can be a particularly enjoyable weapon to deploy where warranted.
The Upper Tribunal’s judgment
The unfortunate effect of the UT’s conclusion in Awuah is that the warheads all point in one direction – towards the lawyers and advisers representing individuals rather than the HOPOs who represent the government in the vast majority of immigration and asylum appeals.
After assembling the ‘statutory jigsaw’ that gives rise to the power to make WCOs, the UT reviewed the key case law on WCOs.
Crucially, before a WCO is made, a legal representative’s conduct must have breached the representatives’ duty to the Court or Tribunal (see § 20, and Medcalf v Mardell & Ors  EWCA Civ 63 at § 54).
There was a distinction in the case law between:
- professional advocates (ie. solicitors and barristers) who enjoyed certain privileges and were bound by heavy ethical duties, and
- non-professional advocates such as HOPOs who were not regulated professionals and had no ethical code.
HOPOs did not owe a duty to the Tribunal in the same way that solicitors and barristers do. They are not a “legal or other representative” who can have a WCO made against them, as required by section 29(5) of the Tribunals, Courts and Enforcement Act 2007 (see § 25).
A further reason for this was that HOPOs are civil servants acting under the authority of Secretary of State. She remains responsible for their actions.
Together, HOPOs and the Secretary of State form a single entity in legal and constitutional terms. Individual HOPOs cannot be held personally liable in these circumstances because the Secretary of State is fully responsible for the HOPOs actions (§ 29).
The UT acknowledged the argument that this situation did not create an equality of arms, however, the UT felt that the Tribunal still has the power to make costs orders against the government if they have behaved unreasonably. HOPOs must abide by their duty to assist and cooperate with the Tribunal (as set out in the ‘overriding objective’ of the Tribunal’s Procedure Rules). HOPOs were also bound by their contractual terms and as an ultimate back-stop, the Secretary of State is answerable to Parliament for any serious failings.
Further guidance was also given on when the Tribunal should make a WCO of its own initiative (ie. without an application from either party to an appeal). The watchwords are “caution and restraint”: outside of obvious cases, Tribunals should not rush to make such orders which may involve complex and costly inquiry.